Representation Under the New Constitution

Fair. Representative. Inclusive.

Contents

Introduction

One of the key promises in the Constitution of Kenya 2010 (CoK 2010), is to deliver equitable and inclusive outcomes of representation for the people of Kenya - both in local and national affairs. These changes are part of far-reaching social and political transformations designed to give an effective voice and say to every person, group, and region in the Country.

In order to achieve basic levels of inclusive representation for all, the Country adopted a new framework of devolved governments under 47 Counties. Basically, these new localised forms of representation were introduced to ensure fair and equitable representation of all peoples within a County's legislative and executive arms of government; strategically, equitable representation of the County among its peers in the wider scheme of things was also assured in the CoK 2010; and thirdly, national representation of every people and group at the national level in both the legislative and executive arms of national government was abundantly provided.

To meet these stated objectives of better and enhanced representation, two things happened. First, traditional geographic areas of representation in most parts of the country were refined and reconstituted by the COK 2010 based on population, geography, urbanization, community interests, historical, economic and cultural ties, and means of communication. These were also somehow squeezed to fit within the County framework so that no constituencies cut across Counties. It followed that 80 additional geographical electoral areas were created to provide for a total of 290 constituencies in the National Assembly, up from 210. Additionally, a new set of 47 geographical constituencies similarly came into being by way of the new Counties and are represented in the new Senate.Secondly, and as part of affirmative action, "virtual" electoral areas were created such that, today, both Houses of the Parliament of Kenya, have significant numbers of special members representing Women, Youth, Persons with Disabilities, Workers, Minority Ethnic and Racial Minorities, Religious and other Special Groups.

Introduction

The history of electoral representation in Kenya before and after independence has been characterised by several factors. Top on the list of those factors has been the twin simultaneous problems of over-representation and under-representation.

This form of skewed representation partly owed its existence and perpetuation on a faulty and inadequate independence constitution. For example, in more than 45 years after independence, no serious efforts were made to reform the old Constitution to ensure effective inclusion and participation of minority groups. What we had was an electoral system based on the first-past-the-post candidate and which often produced winners who could hardly muster more than 30% of the votes cast at an electoral area leading to the phenomenon of "wasted votes" cast for the other candidates. While this was going on, frequent gerrymandering by the political class entrenched political power and loyalty to a select few leading to the marginalisation of the rest of Kenya. Minority communities were hardly considered or effectively empowered either by way of affirmative electoral action or legislation for special seats or nominations to Parliament until 2010.

To be fair, the establishment of the First Senate at independence out of the negotiations at the Lancaster House conferences in London represented a noble attempt at addressing the issue of representation in our history. Its scope was narrow however, in that it mainly attempted to address ethnic, racial, and regional disparities in representation, and nothing more. As history would have it, this Senate hardly lasted for more than 3 years and was abolished as the political elite sought to concentrate power at the center.

Objectives

As we have noted, the Constitution of Kenya 2010 endeavoures towards the fair, equitable and inclusive representation of every person in the country. From its very beginning, the New Constitution does well to acknowledge and affirm the diversity that is its people and how they together, form one nation. The Preamble:

We, the people of Kenya— PROUD of our ethnic, cultural and religious diversity, and determined to live in peace and unity as one indivisible sovereign nation:COMMITTED to nurturing and protecting the well-being of the individual, the family, communities and the nation:RECOGNISING the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law:

Hence as a key constituent of governance, our structures of representation must ensure that all Kenyans are fully and equitably able to participate in the political process and governance of their Nation. Chapter 2 - The Republic:

10. (2) The national values and principles of governance include–– (a) ....... sharing and devolution of power, ........, democracy and participation of the people; (b) human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised;

Inclusive representation, the CoK 2010 continues, must cut beyond tokenism especially around superficial political participation, by not only recognising diversity, but by actively promoting the same in everyday life:

11. (2) The State shall— (a) promote all forms of national and cultural expression through literature, the arts, traditional celebrations, science, communication, information, mass media, publications, libraries and other cultural heritage; (b) recognise the role of science and indigenous technologies in the development of the nation; and (c) promote the intellectual property rights of the people of Kenya.(3) Parliament shall enact legislation to— (a) ensure that communities receive compensation or royalties for the use of their cultures and cultural heritage; and (b) recognise and protect the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by the communities of Kenya.

Fair, equitable and inclusive representation is a component of the Bill of Rights belonging to every citizen. Chapter 4 - The Bill of Rights

19. (2) The purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings.(1) The Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies.

Because the Bill of Rights aims to give the same freedoms and dignity to all, proper representation also encompasses equitable access to resources by the individual and any group into which they associate or may be classified:

20. (5) ....... (b) in allocating resources, the State shall give priority to ensuring the widest possible enjoyment of the right or fundamental freedom having regard to prevailing circumstances, including the vulnerability of particular groups or individuals; ........

Hence by the single-minded and determined pursuit towards the equality of all, the people of Kenya hope to lessen the exposure of vulnerable groups:

21. (3) All State organs and all public officers have the duty to address the needs of vulnerable groups within society, including women, older members of society, persons with disabilities, children, youth, members of minority or marginalised communities, and members of particular ethnic, religious or cultural communities.

Indeed, the New Constitution singles-out these groups and in making specific references to them, makes clear provisions for their representation - respectively, persons with disabilities, youth, minorities and marginalised groups, and older persons. Part 3 - Specific Application of Rights:

54. (2) The State shall ensure the progressive implementation of the principle that at least five percent of the members of the public in elective and appointive bodies are persons with disabilities.

55. The State shall take measures, including affirmative action programmes, to ensure that the youth— (b) have opportunities to associate, be represented and participate in political, social, economic and other spheres of life;

56. The State shall put in place affirmative action programmes designed to ensure that minorities and marginalised groups— (a) participate and are represented in governance and other spheres of life;

57. The State shall take measures to ensure the rights of older persons–– (a) to fully participate in the affairs of society;

In effect, a complete paradigm shift on governance, participation and inclusivity. Part 3 - Rights and Fundamental Freedoms:

27. (6) To give full effect to the realisation of ........ rights guaranteed ......., the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.(8) In addition to the measures contemplated in clause (6), the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.

In a nutshell, the specific objectives in the Constitution of Kenya 2010 with respect to representation, are to give a voice and opportunity for participation and access to resources for everyone and every group; either directly or through both elected and non-elected representatives. To this end, it goes as far as providing for various levels of apportionment of electoral (and executive) positions to ensure that every person or group is not only equitably and effectively represented at the national law-making processes in the Houses of Parliament, but locally, at the County Assemblies as well. In a nutshell: "to achieve the principal of equal weight to each vote."

The Commission highlighted the key points that cut across most of the complaints raised as touching mostly on fairness and inclusivity - and more so, in political representation: (a) That the final allocation lists for each County Assembly did not reflect regional (meaning a distribution of the seats amongst the various constituencies/wards in Counties) and ethnic diversity; (b) That political parties had breached their nomination rules in submitting names; (c) That the names submitted by the branches had been changed by the headquarters and the Commission should revert back to the names on the lists by the branches. (d) That the process of short-listing by the political parties was riddled with nepotism, corruption and bias and the lists therein should be annulled; (e) That persons nominated as representatives of Persons With Disability (PWD), youths and marginalized groups were not qualified to represent the said interests; (f) Issues as to the definition of Persons with Disability; (g) That certain categories of disability were not catered for; (h) Definition of marginalized groups; (i) That certain marginalized categories were not represented; (j) Complaints that certain nominees were relatives of politicians, party bosses or other influential persons; (k) That certain persons nominated were not from the political parties that were entitled to the seats in question; (l) Whether party nominees should be registered as voters in the respective counties; (m) Whether party nominees should be residents of the respective counties; (n) The accuracy of the number of seats allocated by the Commission to political parties; (o) Legality of coalition agreements where parties donate seats allocated to them to coalition partners; (p) That certain persons nominated were public officers at the time of their nomination. (IEBC Website. Accessed Aug 2013).

Concept

As we have seen, the Constitution of Kenya 2010 has sought to address and mitigate for past injustices of representation by providing for fair, equitable and inclusive representation for the individual and the group. These provisions have been designed around the Constitution's framework of devolution in which the country has been divided into 47 geographical units to be known as Counties. Every County is divided into several constituencies. Each Constituency is further divided into geographical electoral units known as Wards. No geographical constituency cuts across more than one County.

Every County has a government consisting of an executive arm and a legislative assembly. The executive arm of the County government is led by a directly-elected Governor, while the elected Ward representatives will form the County Assembly. Through devolution and decentralisation in general, and affirmative action, the people of Kenya hope to progressively achieve optimum (proper, manageable and sustainable) representation for all.

Geographical Representation

The new structure of representation is not based only on geography. Its design incorporates significant affirmative action for minorities. In other words, the voter will directly elect candidates to represent geographic areas and special interests, while political parties too, will nominate candidates to represent specific individual and group interests. We will begin our discussion by considering the design behind the delineation of geographical electoral areas, and thereafter examine that which has informed the representation of the individual as part of a special interest group.

In order to ensure the fair and equitable sub-division of electoral areas in Kenya, the New Constitution has spelt out guiding formulae mainly anchored on geography and population quotas, to define those areas. Excerpts from Article 89 of Chapter 7 - Representation of the People:

89. (12) ........“population quota” means the number obtained by dividing the number of inhabitants of Kenya by the number of constituencies or wards, as applicable, into which Kenya is divided under this Article.

(6) The number of inhabitants of a constituency or ward may be greater or lesser than the population quota by a margin of not more than— (a) forty per cent for cities and sparsely populated areas; and (b) thirty per cent for the other areas.

As sub-article (6) alludes, the mathematical quota provision for electoral areas is not cast in stone - to allow for deliberations, for consultations, and to factor new and emerging socio-political and economic dynamics in the future. This formulae also consider population densities, composition, historical and social-economic factors etc:

(5) The boundaries of each constituency shall be such that the number of inhabitants in the constituency is, as nearly as possible, equal to the population quota, but the number of inhabitants of a constituency may be greater or lesser than the population quota in the manner mentioned in clause (6) to take account of— (a) geographical features and urban centres; (b) community of interest, historical, economic and cultural ties; and (c) means of communication.(8) If necessary, the Commission shall alter the names and boundaries of constituencies, and the number, names and boundaries of wards.

Sub-clause (5)(b) and Clause (8) above have led to the renaming of some Constituencies with some reverting to names of old that represented "community of interest, historical and cultural" demographics. An example of a renamed constituency is Baringo East which is now known as Taity. Others such as Embakasi Constituency in Nairobi County have been split (into Embakasi North, South, East, West, Central Constituencies) to meet 'population quota' requirements; while new ones have been carved out of existing constituencies such as Jomvu from Changamwe in Mombasa County.

It is important to mention to the reader here that the mathematical quota allowing for Ward populations and hence Ward boundaries, is inadequate in several ways in ensuring that constituencies within a county are permitted equal numbers of representation at the local County Assembly.

The first reason for this is the fact that the delimitation of County boundaries is not based on populations at all but rather on a historical fact of Districts under the old provincial administrative boundaries (see the discussion on the 47 Counties of Kenya). Therefore, invariably, there are constituencies that contribute much larger proportions of County Assembly Members than others within the same County - all things constant. Secondly, the fact of unequal population densities in constituencies within the same County is also a major contributor to this disparity. And thirdly, the requirement in the New Constitution that granted some Constituencies "Protected" status during the review of boundaries by the IEBC meant that an imperfect outcome was arrived at in many areas.

Had the IEBC's hands not been tied in this way, some constituencies would have been done away with, new ones created, and others delimited as appropriate. Despite these shortcomings, Kenya's New Constitution does go a long way in the democratisation of representation.

The Independent Electoral and Boundaries Commission IEBC is the main body mandated by the New Constitution to set, to review and to assign names and boundaries to electoral areas in Kenya. Excerpts from Chapter 7 - Representation of the People, Part 2 - IEBC and Delimitation of Electoral Units, Article 89:

89. (2) The Independent Electoral and Boundaries Commission shall review the names and boundaries of constituencies at intervals of not less than eight years, and not more than twelve years, but any review shall be completed at least twelve months before a general election of members of Parliament. (3) The Commission shall review the number, names and boundaries of wards periodically.

Clause (2) ensures that delimitation of electoral boundaries is in sync with the ten year population census cycle in Kenya - a recommendation suggested by the Kriegler Commission; and provides adequate time for debate by all stakeholders, before an election is held. It also eradicates gerrymandering by the political elite.

Meanwhile, the Senator for Makueni is pushing forth the County Boundaries Bill 2015 mainly to address the confusion and tensions that have arisen around County boundaries since the CoK 2010 was adopted. Delimitation of County boundaries is not the work of the IEBC but that of a different body (in this case, the Independent County Boundaries Commission) that the Bill seeks to set up. Chapter 11 - Devolved Government, Part 4 - The Boundaries of Counties:

188. (1) The boundaries of a county may be altered only by a resolution––(a) recommended by an independent commission set up for that purpose by Parliament; .......

(unfinished.......)

Virtual Representation

The second part of the design governing representation under the Constitution of Kenya 2010 embraces the concept of affirmative action towards previously marginalised groups and communities. Before we delve deeper into the design, it is prudent to define the terms "marginalised groups" and "marginalised communities". From Chapter 17 - General Provisions, Article 260 of the New Constitution:

260. In this Constitution, unless the context requires otherwise— “marginalised community” means— (a) a community that, because of its relatively small population or for any other reason, has been unable to fully participate in the integrated social and economic life of Kenya as a whole; (b) a traditional community that, out of a need or desire to preserve its unique culture and identity from assimilation, has remained outside the integrated social and economic life of Kenya as a whole; (c) an indigenous community that has retained and maintained a traditional lifestyle and livelihood based on a hunter or gatherer economy; or (d) pastoral persons and communities, whether they are— (i) nomadic; or (ii) a settled community that, because of its relative geographic isolation, has experienced only marginal participation in the integrated social and economic life of Kenya as a whole; “marginalised group” means a group of people who, because of laws or practices before, on, or after the effective date, were or are disadvantaged by discrimination on one or more of the grounds in Article 27 (4);

These groups are loosely referred to as minorities. To be fair, a group or community may be categorised as a minority in one context (or in a constitutionally-defined geographical area such as a County, but yet be a majority in another context such or area. Thus for example, the pastoral and nomadic communities of the Maasai whom Article 260 above recognises, are nevertheless, majorities in their "home" Counties of Kajiado and Narok. It should therefore not be lost on the reader, that devolution and decentralisation are not always geared to address the needs of minorities and the marginalised only, but also those of the majority and the densely populated who too, have a right to efficient (or fair) representation.

Article 260 has therefore given rise to the creation of new "virtual" Constituencies (special interests) at both the national and local levels, under affirmative action towards enhancing representation. Excerpts from Article 95 in Chapter 8 - The Legislature, Part 1 - Establishment and Role of Parliament:

95. (1) The National Assembly represents the people of the constituencies and special interests in the National Assembly .......

This is to say, our New Constitution has provided for multi-member representation of the voter as an individual (in a geographical area) and the voter as a member of an interest group (virtual representation). Most of these virtual constituencies for minorities are represented by members nominated by political parties under the political party lists requirements within the CoK 2010, the Elections Act, the Political Parties Act, etc. Many provisions in the Constitution of Kenya 2010, have laid the ground for affirmative legislation towards minorities and special groups both nationally and at the local level. At the national level the idea of "party lists" attempts to have minorities play important roles even within the larger political parties that may be dominated by majority groups and communities. Excerpts from Chapter 7 - Representation of the People, Part 3 -Political Parties, Article 91:

91. (1) Every political party shall—.......(e) respect the right of all persons to participate in the political process, including minorities and marginalised groups; ...... .

At the local level of the County Assemblies, Parliament is expected and obliged to ensure that there is adequate national legislation that guarantees adequate proportions of specially-elected County Assembly members (Representatives of virtual constituencies) who will represent the interests of county minorities and other marginalised groups; i.e, a vote and voice to take care of local minority interests: Excerpt from Article 197:

197. (2) Parliament shall enact legislation to— (a) ensure that the community and cultural diversity of a county is reflected in its county assembly and county executive committee; and (b) prescribe mechanisms to protect minorities within counties.

This is important in Kenya because of our ethnic and cultural diversity and I dare say - polarization. The general idea is to not only appease the previously marginalised by creating space for them at the high table, but to also thrust to the fore, them that have remained (whether by design or otherwise) in the periphery of local politics, or the indeed, the bigger arena of nationhood. The foregoing point has been captured and addressed in Article 100 in Part 2 - Composition and Membership of Parliament contained in Chapter 8 - The Legislature, and which defines who really constitute such groups:

And Article 177 of Chapter 11 on Devolved Government, Part 2 - County Governments:

177. (1) A county assembly consists of— .......(c) the number of members of marginalised groups, including persons with disabilities and the youth, prescribed by an Act of Parliament; ....... .

It is safe to say therefore that moving forward, the New Constitution attempts to guarantee meaningful participation of minorities in local and national politics especially when one takes into account the fact that almost all Counties have a dominant ethnic (sometimes two) or other group, and a sprinkling of smaller groups from either neighbouring Counties or by way of migration and settlement from every corner of the Republic. This is a good thing and should promote harmony and unity.

To paraphrase these thoughts on the representation concept, the term "Constituency" has acquired multiple definitions under our New Constitution to provide for fair and equitable representation at both the national and local legislative and executive levels of government. As we have seen, its meaning will now not just define geographical areas, but will include diverse permutations of representation of interest groups, communities and persons, etc.

Form

As we have seen, political representation in Kenya exists in two forms, namely, geographical and virtual forms of representation. Under the geographical form, the number of constituencies were increased from 210 to 290 for the 2013 General Elections:

89. (1) There shall be two hundred and ninety constituencies for the purposes of the election of the members of the National Assembly ........

On March the 7th 2012, Kenya's electoral body, the Independent Electoral and Boundaries Commission (IEBC) published a list of the 290 geographical political boundaries or Constituencies for the 2013 General Elections under the Constitution of Kenya 2010. This was the culmination of a drawn out and comprehensive exercise in which (among other demographic data collection activities), the Commission engaged in stakeholder discussions while going around the Counties collecting public views on representation. Accordingly, the IEBC reported that, "the process of boundaries delimitation requires detailed analysis of population, geographical features and urban centres, community of interest, historical, economic and cultural ties and means of communication. In undertaking the process, the Commission employed statistical and Geographic Information Systems (GIS) modeling to come up with proposals for resolving the issues arising out of the First Review (by the IIRBC). This process involved collection and analysis of the 2009 Kenya National Population and Housing Census, geographical details from the Survey of Kenya, Kenya Forestry Services, Kenya Wildlife Service, Water Resources Management Authority, Kenya Roads Board, Communication Commission of Kenya and other Government Departments." (IEBC, 2012)

Not withstanding the tremendous efforts of the IEBC in the exercise of delineation, some (132 in total) of these Constituency boundaries were subsequently contested in Court:

89. (10) A person may apply to the High Court for review of a decision of the Commission made under this Article.(11) An application for the review of a decision made under this Article shall be filed within thirty days of the publication of the decision in the Gazette and shall be heard and determined within three months of the date on which it is filed.

A year later, however, on the 5th of July 2013, the Court of Appeal did rule in favour of an appeal lodged by some minority communities in Mandera County who on their part, when before the High Court, had accused the IEBC of, inter alia, failing to provide for their representation in a region dominated by much larger communities - this, in spite of the fact that the Commission had created new Wards in the County prior to the General Elections. These minorities collectively known as 'the corner tribes' had demanded Ward boundaries that effectively marked out their domicile and hence guaranteed their fair representation within the local County Assembly, as well as a full constituency of their own for representation in the National Assembly. This (chastising) ruling by the Court of Appeal set an important precedent meant to ensure that in the next boundary review, the IEBC must fully accommodate the interests of such minorities:

Geographical Constituencies created for the 2013 Elections

During the review of boundaries and names, the IEBC went beyond creating 80 new Constituencies for the 2013 General Elections, by renaming approximately 32 Constituencies in a bid to realign their names with what it considered to be the true identity of the people within and around the affected areas. Excerpts

89. (2) The Independent Electoral and Boundaries Commission shall review the names ....... of constituencies .......(5) ....... to take account of— (b) community of interest, historical, economic and cultural ties; .......(8) If necessary, the Commission shall alter the names and boundaries of constituencies .......

Some of the new names included Tiaty (formerly Baringo East) in Baringo County, and Suba North (formerly Mbita) in Homa Bay County.

Let us look again at the key indicators considered in the delineation of the 290 Constituencies of Kenya as captured in sub-article 89 (5):

(5) The boundaries of each constituency shall be such that the number of inhabitants in the constituency ....... may be greater or lesser than the population quota in the manner mentioned in clause (6) to take account of— (a) geographical features and urban centres; (b) community of interest, historical, economic and cultural ties; and (c) means of communication.

The final outcomes from this review of boundaries (as guided by clause (5)), was such that on one end of the quota spectrum, cities and other select areas that have higher densities of inhabitants were allowed higher population quotas, while on the opposite end, sparsely populated areas got away with lower quotas, all in the name of Sub-Article (6):

(6) The number of inhabitants of a constituency or ward may be greater or lesser than the population quota by a margin of not more than— (a) forty per cent for cities and sparsely populated areas; and (b) thirty per cent for the other areas.

The 3 terms 'other areas', sparsely populated' and 'cities' in clause (6) above have not been clearly demarcated by the New Constitution, perhaps because of the complexity of attempting to do so. Indeed, a quick look at the three tables below not only demonstrates glaring variations amongst Constituencies within the same classification, but also wide overlaps across Constituencies in different classifications:

Indicator

Leading Constituency

(County)

Size

Trailing Constituency

(County)

Size

Population

Makueni (Makueni)

243,219

Wundanyi (Taita/Taveta)

56,021

Area (sq. km.)

Kilgoris (Narok)

2,526.00

Mathare (Nairobi)

3.00

Density (persons

per sq. km.)

Mathare (Nairobi)

64,472

Kilgoris (Narok)

71

Many reasons have been offered to explain these inconsistencies. Some simple, some not so simple. For example, out of the 210 Constituencies of old, 27 of them enjoyed 'protected status' and their boundaries were not affected by the review. Sixth Schedule:

27. (4) The Boundaries Commission shall ensure that the first review of constituencies undertaken in terms of this Constitution shall not result in the loss of a constituency existing on the effective date.

These 27 Constituencies have contributed their fair share of the inequalities of representation that exist even after the 2013 General Elections. Another obvious reason has to do with the fact that the delineation of Constituency boundaries had to confine itself within the new 47 Counties, which were themselves based largely on a historical fact of Districts (rather than on modern, scientific and democratic considerations) under the former Provincial Administration. Add to the fact that much of the country has very uneven population densities (due to terrain, climate, soil, and history, etc) and the reader can begin to appreciate the facts and realities informing the short to medium-term challenges of inequalities in national representation that Kenyans must face.

NB. A localised picture of the geography and the numbers that informed the delineation of each of the 290 Constituencies and the 1,450 Wards can be found under the respective County in the 47 Counties of 2010 discussion. In that discussion, we've clustered the Constituencies and Wards within their respective Counties to aid in clarity, coherence, context and most importantly, for comparison. The reader will also notice the same inequalities playing out at the local level in which Constituencies within the same County have widely varying populations, area, and density. The end result will of course be unequal representation at the local County Assembly, power struggles, and perhaps inevitably, challenges in local resource mobilisation and allocation. To illustrate this point let us consider Baringo County and examine its key indicators of delineation:

Table 4.4 IEBC's Classification of Constituencies in Baringo County

Constituency

Area in sq. km

Population

Density per sq. km.

--Classification--

Baringo Central

588.52

81,480

138

Other Areas

Baringo North

1,703.50

93,789

55

Sparsely Populated

Baringo South

1,985.11

80,871

41

Sparsely Populated

Eldama Ravine

953.82

105,273

110

Other Areas

Mogotio*

1,303.87

60,959

46

Sparsely Populated

Tiaty

4,540.48

133,189

29

Sparsely Populated

Total: 6

11,075.30

555,561

It is not hard to imagine the kind of challenges that the County will grapple with from the word go seeing that there are all kinds of inequalities amongst the 6 Constituencies.

Virtual Constituencies created for the 2013 Elections

Beyond geographical representation of population groups and areas, the Constitution of Kenya 2010 has gone to considerable lengths to provide for representation of the individual as part of a larger group with similar interests and rights - what we have referred to previously as virtual constituencies. To demonstrate these diverse forms of representation, we will next examine the various proportions of representatives that constitute the national and sub-national legislative assemblies.

To help us better understand this, let us consider the example of a youngdisabledworkingminoritywoman voter registered at a given constituency. She will be represented in multiple forms both at the National Assembly as well as at the Senate. At the National Assembly she will, at the very least, be represented by 3 groups of Members; a directly elected Member of her Constituency, 47 Women Representatives from the Counties, and marginally, by 12 nominated members of that House in various combinations because she has a disability, because she is a youth, a worker, and comes from a minority community. Excerpts from Chapter 8, Part 2 - Composition and Membership of Parliament:

97. (1) The National Assembly consists of— (a) two hundred and ninety members, each elected by the registered voters of single member constituencies; (b) forty-seven women, each elected by the registered voters of the counties, each county constituting a single member constituency; (c) twelve members nominated by parliamentary political parties according to their proportion of members of the National Assembly in accordance with Article 90, to represent special interests including the youth, persons with disabilities and workers; and ........

Table 4.1 below, captures these divers forms of representation (for the woman in our example) at the National Assembly:

Table 4.5 Geographical & Virtual Representation at the National Assembly

Representation at the National Assembly

Representation

Geographic & Population Representatives

Virtual Representatives

Constituent

General Population

Women

Youth

Disabled

Workers

Ethnic and Other Minorities

Marginalised Communities

Members of the National Assembly

290

47

12

12

12

12

12

Similarly at the Senate, she will be represented by the Senator of her County, by all of 16 nominated women, one other man and woman because she is a youth, plus one other man and woman because she has a disability. Excerpts from Chapter 8, Part 2, Article 98:

98. (1) The Senate consists of— (a) forty-seven members each elected by the registered voters of the counties, each county constituting a single member constituency; (b) sixteen women members who shall be nominated by political parties according to their proportion of members of the Senate ........; (c) two members, being one man and one woman, representing the youth; (d) two members, being one man and one woman, representing persons with disabilities; and .......

Representation at the Senate

Representation

Geographic & Population Representatives

Virtual Representatives

Constituent

General Population

Women

Youth

Disabled

Ethnic and Other Minorities

Marginalised Communities

Members of the Senate (Senators)

47

16

2

2

?*

?*

Gender

Both

Female

Man and Woman

Man and Woman

Both

Both

*Although the Senate represents the interests of the Counties (where minorities and the marginalised are to be found), the New Constitution has not specifically assigned a particular group of Senators to champion those special interests. Having said that though, and from foundational reasons of its very existence, the Senate will, as a whole, be expected to champion such interests.

A second feature of the form of representation that will be present at the Senate that may interest the reader, has to do with voting rights. Senators from one County will have a combined count of 1 when voting for a matter concerning the Counties. Chapter 8 - The Legislature, Part 5 - Parliament's General Procedures and Rules:

123. (1) On election, all the members of the Senate who were registered as voters in a particular county shall collectively constitute a single delegation ........

However, when voting on other Bills, each Senator will have a single vote, and consequently giving a greater voice to such constituencies as women, youth and the disabled.

(3) When the Senate votes on a matter that does not affect counties, each senator has one vote.

As we have seen so far, Kenya's New Constitution provides the woman voter with many compelling reasons to own the entire electoral process and its outcomes (campaign and voting). As Adams Oloo says (while quoting from the IDEA, 2005) in Elections, Representations and the New Constitution: "This increases the voters’ perception that it is worth making the trip to the polling booth at election time, as they can be more confident that their vote will make a difference to the election outcome, however small" (Oloo, 2011).

This is important from a woman's point of view because electoral politics in Kenya is today still, by far, a male-dominated process. The two tables above i.e., Tables 4.5 and 4.6 only give minimum levels of virtual representation for Women; but with one stroke of the pen, the New Constitution threw a spanner in the works by declaring that "....... (b) not more than two-thirds of the members of elective public bodies shall be of the same gender;....." in Article 81 (b)!

Not surprisingly, questions had been raised in various quarters, on the practicality of immediate implementation of the one-third gender rule. This debate became a matter of wide discussions as the date of the (first) general elections under the new constitution quickly approached. The matter was eventually referred (by the Attorney General) to the Supreme Court in 2012 and an advisory opinion was given by the Court in December of the same year. The opinion essentially spelled out that the one-third gender rule would be "progressively realized" over several years or two election cycles and not immediately with the 2013 elections. In fact, the Court did specify a timeline for the realisation of the principal of one-third gender rule:

[79] Bearing in mind the terms of Article 100 [on promotion of representation of marginalised groups] and of the Fifth Schedule [prescribing time-frames for the enactment of required legislation], we are of the majority opinion that legislative measures for giving effect to the one-third-to-two-thirds gender principle, under Article 81(b) of the Constitution and in relation to the National Assembly and Senate, should be taken by 27 August, 2015.

As would be expected, the matter did not rest there and more questions continued to be raised on the long-term objectivity of giving women a "direct pass" so-to-speak, to what are traditionally (direct) elective positions in a society that has traditionally demarcated gender roles. For instance, Kiriro wa Ngugi firmly asserts, "If Kenyans, in exercising their sovereignty at the (2013) ballot, do not collectively obey the one-third rule, it would be manifest that the rule does not reflect the way they live or want to live." (Ngugi, 2012).

In a similar opinion, Nic Cheeseman calls this 'tokenism' and posits that, " ........ there is no clear relationship between the quality of democracy in a country and the representation of women." According to him, numbers alone are not a sufficient indicator or guarantee that women will be better represented in the political sphere. Like Kiriro wa Ngugi, Cheeseman challenges the women to raise the legitimacy of their appointments by capturing direct affirmation at the ballot: "...... how women enter the legislature may be as important as how many women enter the legislature."

Cheesman essentially said that in order to match their men counterparts, they (the women) must, like their male peers, be able to muster popular support at the grassroots: "If women are to exert an influence on government policy, it is important that they are seen to hold their positions legitimately, and to be representing a genuine constituency." (Cheeseman, 2013).

When in March 2014 the National Assembly passed the controversial Marriage Bill 2013 in a process that appeared to have been largely driven by male Members of the House, various commentators were quick to accuse the women members of the National Assembly of lacking a strategy and unity of purpose in driving the agenda of the women of Kenya. "........ it appears the women MPs approached their work on the Marriage Bill with a total lack of strategy", wrote Dr Joyce Nyairo in the The EastAfrican, adding that, "they never really tried" to influence its content.

In a followup article, Dr Nyairo called the women members "an unmitigated disaster" and went on to question the very concept of affirmative representation of women. "We fell for the common fallacy that by having more women in Parliament we would automatically achieve agency and better representation on (women’s) issues." In the article, she highlights various legislative achievements ably made by both elected and nominated women members in previous Parliaments at a time when the concept of affirmative representation was nothing more than a mention, and their numbers in the House were barely at 5 percent. "Quantity does not always translate into quality", she said.

Echoing Cheeseman, she is firm that, "....... we must reconsider the whole function of Women’s Representatives. Maybe, like all affirmative action, this one has become a site of tokenism. The kind that, sadly, breeds mediocrity and entitlement in equal measure", she concluded. (Nyairo, 2014).

As the August 27th 2015 date drew closer apparently without any clear and definite indication of on-going legislative or constitutional changes that would deliver the one-third gender rule, the rights group - Center for Rights Education & Awareness (CREAW), petitioned the High Court saying that there existed a real risk or threat to violation of the Constitution of Kenya 2010's provisions that it must be fully implemented 5 years from its promulgation (it was adopted on the 27th of August 2010). CREAW also reminded the Court of the Supreme Court's Advisory Opinion on the same issue given in December 2012.

"112. In the circumstances, I am satisfied that the petition has merit, and I therefore issue the following declarations and orders:

a. It is hereby declared that to the extent that the 1st and 2nd Respondent have this far failed, refused and or neglected to prepare the relevant Bill(s) for tabling before Parliament for purposes of implementation of Articles 27(8) and 81(b) of the Constitution as read with Article 100 and the Supreme Court Advisory Opinion dated 11th December 2012 in Reference Number 2 of 2012, they have violated their obligation under article 261(4) of the Constitution to “prepare the relevant Bills for tabling before Parliament as soon as reasonably practicable to enable parliament to enact the legislation within the period specified”.

b. It is hereby declared that the foregoing failure, refusal and or neglect by the 1st and 2nd Respondent is a threat to a violation of Articles 27(8) and 81(b) as read with Article 100 of the Constitution and the Supreme Court Advisory Opinion dated 11th December 2012 in Reference Number 2 of 2012.

c. An order of Mandamus be and is hereby issued directed at the 1st and 2nd Respondents directing them to, within the next Forty (40) days from the date hereof, prepare the relevant Bill(s) for tabling before Parliament for purposes of implementation of Articles 27(8) and 81(b) of the Constitution as read with Article 100 and the Supreme Court Advisory Opinion dated 11th December 2012 in Reference Number 2 of 2012."

Moving on, allow me to draw your attention to one fact of default that arises from the fact of having a Senate: and that is, to counter the potential domination of the National Assembly (and hence the politics of the day) by the larger populations. The small matter of the mathematics of Kenya's ethnic composition is such that the Luhya, Kikuyu and Luo ethnic groups account for more than forty per cent of the country's population, and therefore could potentially dominate the Assembly's proceedings and influence its workings to the exclusion of other groups. Therefore the Senate is in part designed to mitigate against this potential domination in Parliament by any one or a few interest groups, not least because quite a few of the minority communities have a Senator of their own in the house. As can be noted from our discussion on the colonial legacy that is the basis of the tribal boundaries that define our present Counties, "The Senate reflects the equality of the counties ......." (Osoro J B, 2013).

Finally, at the County Assembly level (a form of local Parliament under the devolved system of government in Kenya), where no more than two-thirds of the members will be of the same gender, the woman voter in our example will continue to enjoy a higher level of positive discrimination; and this, not only at the legislative assembly, but also in the executive government of her County:

197. (1) Not more than two-thirds of the members of any county assembly or county executive committee shall be of the same gender.

In the same vein, going forward, political parties will, before an election, be required to publish party lists of representatives of minorities and special groups (in which the woman in our example belongs) of candidates who would be included in the lists of nominated members in both the houses of Parliament. Consider Article 90 that guides the composition of party lists. Excerpts:

90. (1) Elections for the seats in Parliament shall be on the basis of proportional representation by use of party lists.(2) The Independent Electoral and Boundaries Commission shall ensure that—(a) each political party participating in a general election nominates and submits a list of all the persons who would stand elected if the party were to be entitled to all the seats provided for under clause 197. (1), ....... ; (b) ....... each party list comprises the appropriate number of qualified candidates and alternates between male and female candidates in the priority in which they are listed; and (c) ....... each party list reflects the regional and ethnic diversity of the people of Kenya.

Table 4.7 below, captures these divers forms of representation (for the woman in our example) at the local County Assembly:

Representation at the County Assembly

Representation

Geographic & Population Representatives

Virtual Representatives

Constituent

Members of the County Assembly

Equal to No. Of Wards

At least 1/3 of all Members

?*

?*

?*

?*

* Top-up (or deficit) count - so not more than two-thirds of the members of the Assembly are of the same gender.

As an example, Lamu County with just 10 Wards and the fewest among the 47 counties will have a county assembly of only ten directly-elected members. If the County voters directly elect 10 men, its Assembly must nominate 5 women from the political parties lists in the County to top-up the women count to provide for at least 1/3 of the total in the Assembly. For the predominantly-Muslim Lamu with an important tourism segment, perhaps the nominated members in its assembly will also double up to represent the interests of other faiths and those of the tourism sector.

On the other hand, Kakamega - predominantly a Luhya community region with 60 Wards - and the second highest after Nairobi's 85 wards - is expected to nominate members to its assembly who will represent smaller ethnic and minority groups such as the Luo, the Kikuyu and Kalenjin, Muslims, Kenyans of Asian extraction, etc. Geographical County boundaries are expected to have taken care of cultural, clan and sub-ethnic history, affiliations, and ties etc (Article 89 (5) (b)); seeing that in our example, the Luhya people have about a dozen sub-language groups with some more dominant than others within the county.

While discussing political representation at the legislative assemblies and governments, let's not loose sight of one other important form of representation that the woman in our example stands to benefit from. As a worker, she can represent herself singly or in a group whenever she wishes to express an opinion, feeling, thought, request or desire. Chapter 4 - The Bill of Rights:

37. Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.

In effect, the worker has been assured of rights and fundamental freedoms:

41. (2) Every worker has the right— (c) to form, join or participate in the activities and programmes of a trade union; and (d) to go on strike.(3) Every employer has the right— (e) to form and join an employers organisation; and (f) to participate in the activities and programmes of an employers organisation.(4) Every trade union and every employers’ organisation has the right— (a) to determine its own administration, programmes and activities; (b) to organise; and (c) to form and join a federation.(5) Every trade union, employers’ organisation and employer has the right to engage in collective bargaining.

Oftentimes and in reality, the dynamics of representation can be too complex to capture effectively in the letter of the Constitution. The spirit of a good constitution must therefore, invite the cooperation of and appeal to the moral and ethical soul of the majority, to protect the interests of the minority. "The protectionof minority rights is best achieved and articulated through a combination of majority sensitivity and minority inclusion" (Oloo, 2011). Indeed, according to Reginald Oduor, there exists "a rationale for a set of moral principals to serve as a basis for the constitutional protection of ethnic minorities in Kenya's emerging democracy."(Oduor, 2011).

In conclusion, representation remains a work in progress for years to come and hence is likely to dominate future politics (and division of resources), elections and even amendments to the New Constitution. What is important to keep in mind is that (affirmative) representation is a desirable concept in modern democratic systems and we should therefore take care not to second-guess ourselves for passing it along with our constitution when those elected/nominated to champion minority interests fail to deliver on those promises.

Indeed, it wasn't until sometime in September 2015 that the public's perception of the effectiveness of women representatives began to change when a civil rights organisation Mzalendo, that monitors parliamentary activity, published a report to demonstrate that women members of Parliament contributed their fair share in the two houses especially with respect to the passing of bills and oversight roles. Said the report, "....... women have earned the political positions they hold and make valuable contributions." In fact, the research report directly contradicted the widely held view discussed earlier that implied that affirmative representation of women amounted to nothing more than tokenism: "....... there is no marked difference in contributions of women Parliamentarians whether elected, nominated or selected under affirmative action. They all provide quality contributions to national interest issues. (Mzalendo, 2015).